University of Sydney Law School Legal Studies Research Paper Series最新文献

{"title":"TPP – Australian Section-by-Section Analysis of the Enforcement Provisions","authors":"Kimberlee Weatherall","doi":"10.2139/SSRN.2357259","DOIUrl":"https://doi.org/10.2139/SSRN.2357259","url":null,"abstract":"This paper analyses the leaked 30 August 2013 text of the TPP IP Chapter from an Australian perspective, focusing on the enforcement provisions only. The goal is to assess the compatibility of provisions in the current draft with Australian law and Australia’s international obligations: including TRIPS and the Australia-US Free Trade Agreement (AUSFTA). The review has several key purposes: 1. To contribute careful analysis to the current debate on the TPPA IP proposals; 2. To offer input into the Australian processes considering the TPPA; 3. To demonstrate to an international audience the relationship between these provisions and TRIPS; and 4. To demonstrate the relationship between these provisions and existing US Free Trade Agreements like AUSFTA. A surprising number of the provisions go beyond AUSFTA.Reading the IP provisions of the TPP IP chapter leak dated August 2013 is a maddening, dispiriting process. The provisions are written like legislation, not treaty, suggesting a complete lack of good faith and trust on the part of the negotiating countries. There are subtle tweaks of language, the phrases included or not included from previous treaties; the subtle re-wordings that might give a treaty provision an entirely different meaning. Working out the scope of a country’s obligations if even half of this text becomes treaty is going to be extremely difficult. A range of big picture questions arise as to the relationship between any TPP IP chapter and other obligations to which countries may be subject, and I’m not at all convinced we know the answers. On a substantive level, much about the language of these provisions has changed since the US proposals dated February 2011. Some more extreme elements of the US proposals have been removed or watered down; some safeguards or qualifications have been inserted that preserve domestic flexibility or require consideration of user interests or civil liberties and fair process. Despite this, the chapter is still radically unbalanced. There are still far too few safeguards for defendants and third parties in the context of IP litigation. And there are many specific proposals with potentially negative impacts on the litigation process and on the balance of IP law.","PeriodicalId":358833,"journal":{"name":"University of Sydney Law School Legal Studies Research Paper Series","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114933368","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Uneasy or Accommodating Bedfellows? Common Law and Statute in Employment Regulation","authors":"J. Riley","doi":"10.2139/SSRN.2356032","DOIUrl":"https://doi.org/10.2139/SSRN.2356032","url":null,"abstract":"In 2005, Professor Phillipa Weeks published an insightful chapter entitled ‘Employment Law – A Test of Coherence Between Statute and Common Law’ in S Corcoran and S Bottomley (eds) Interpreting Statutes. That chapter examined the emergence, development and ultimate emasculation of an implied term of trust and confidence in employment, as a consequence of the interaction of judicial reasoning and legislative intervention. At the time, Professor Weeks bemoaned the ‘dismal state’ of Australian common law, and proposed a solution to the apparent incoherence and doctrinal imperfection in the law. This address will pick up the story where Professor Weeks left off, by considering the influence of developments – judicial and statutory – since publication of this important piece, and will revisit possible solutions in the light of those developments.","PeriodicalId":358833,"journal":{"name":"University of Sydney Law School Legal Studies Research Paper Series","volume":"231 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114077947","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Equality Unmodified","authors":"R. Graycar, J. Morgan","doi":"10.22459/sdut.09.2010.08","DOIUrl":"https://doi.org/10.22459/sdut.09.2010.08","url":null,"abstract":"This chapter examines a proposal to recast Australia’s federal discrimination laws by doing away with the current fragmented approach by which there are separate legislative regimes responding to sex, race, age and disability discrimination and instead replace them with a combined “Equality Act�?. It considers whether the proposal might enhance women’s equality in Australia and whether it might more effectively respond to the fact that women have a multiplicity of intersecting identities – ie, they have a race, a sexuality, differing physical abilities etc – in different times and in different contexts. It also examines whether such an approach might effectively transcend the complaints-based focus of traditional discrimination laws. Finally, the chapter considers the processes and the fora within which these issues have been debated.","PeriodicalId":358833,"journal":{"name":"University of Sydney Law School Legal Studies Research Paper Series","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129862709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Wearing Thin: Restrictions on Islamic Headscarves and Other Religious Symbols","authors":"B. Saul","doi":"10.5040/9781472564283.ch-007","DOIUrl":"https://doi.org/10.5040/9781472564283.ch-007","url":null,"abstract":"This paper critically examines three key recent cases of superior courts concerning restrictions on religious symbols: a prohibition on wearing headscarves in Turkish universities, upheld by the Grand Chamber of the European Court of Human Rights (Sahin v Turkey)(2005); a restriction on a particular kind of Islamic dress in an English school, upheld by the British House of Lords (R (on the Application of Begum) v Headteacher and Governors of Denbigh High School)[2006]; and an absolute ban on wearing a Sikh kirpan (a symbolic dagger) in a Quebecois school, struck down by the Canadian Supreme Court (Multani v Commission scolaire Marguerite-Bourgeoys)[2006]. Each case focused on similar arguments about freedom to manifest one's religion, and dealt with subsidiary arguments about the impact of the respective restrictions on the right to education. While each case proceeded from different factual circumstances, there are considerable differences in their approaches to what were essentially the same human rights law questions. The decision of the European Court of Human Rights is the least satisfactory in both its reasoning and its result; the House of Lords arguably reached the correct result but its reasoning was abbreviated; and the Canadian Supreme Court properly reasoned its way to a correct result.","PeriodicalId":358833,"journal":{"name":"University of Sydney Law School Legal Studies Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130350062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Defending 'Terrorism': Justifications and Excuses for Terrorism in International Criminal Law","authors":"B. Saul","doi":"10.22145/aybil.25.6","DOIUrl":"https://doi.org/10.22145/aybil.25.6","url":null,"abstract":"The first part of this article outlines the purported causes of terrorism advanced in the UN General Assembly since the 1970s, and the contrary views of States on whether these causes ought to justify or excuse terrorist violence - particularly self-determination or national liberation violence. The second part examines how a limited range of justifications for any new international crime of terrorism could be accommodated by individual defences in international criminal law (including self-defence, and duress/necessity). It then proposes that non-State group actors accused of terrorist crimes should be entitled to plead 'circumstances precluding wrongfulness', drawn analogously from the law of State responsibility. While a narrow class of terrorist acts may be excused by individual or group defences, some acts considered justifiable may still fall outside the scope of defences. To maintain the law's legitimacy, the final part argues that some crimes of terrorism could be regarded as 'illegal but justifiable' (or at least, excusable) in stringently limited, objectively verifiable circumstances, possibly under the rubric of a 'collective defence of human rights'.","PeriodicalId":358833,"journal":{"name":"University of Sydney Law School Legal Studies Research Paper Series","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131407942","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Collective Bargaining by Independent Contractors: Challenges from Labour Law","authors":"S. McCrystal","doi":"10.2139/ssrn.1079884","DOIUrl":"https://doi.org/10.2139/ssrn.1079884","url":null,"abstract":"Collective bargaining by small business actors, including independent contractors, is subject to the anti-competitive conduct provisions in Part IV of the Trade Practices Act 1974 (Cth) (TPA). The Australian Competition and Consumer Commission can authorise the pursuit of conduct that would otherwise breach Part IV, but the process is lengthy and difficult. This article examines suggested changes to the authorisation process that would institute 'collective bargaining notices' for small business actors. The proposed changes were embodied in a Bill introduced into Federal Parliament to amend the TPA in 2005 but which subsequently failed to be enacted. The article discusses the content of the proposed changes and explores the 'traps' lying in the common law (breach of contract, restraint of trade, economic torts) and in the TPA (secondary boycotts) that were not adequately addressed by the proposed collective bargaining notice system. The article argues that common law and TPA challenges to employee collective bargaining remain relevant for independent contractor bargaining. In order to provide meaningful access to collective bargaining for non employee actors, any changes to the TPA must address these alternate areas of potential liability.","PeriodicalId":358833,"journal":{"name":"University of Sydney Law School Legal Studies Research Paper Series","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126886995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Household Models: An Historical Perspective","authors":"P. Apps, R. Rees","doi":"10.2139/ssrn.1069402","DOIUrl":"https://doi.org/10.2139/ssrn.1069402","url":null,"abstract":"This paper is a survey of the literature on theoretical models of the household, paying particular attention to some of the earlier contributions, and using them to place the current state of the theory in perspective. One of its aims is to suggest that the literature’s neglect of Samuelson’s proposal, that households can be modelled as if they maximised a form of social welfare function, was a mistake. However, the idea following directly from the Nash bargaining models, that the household’s preference ordering over the utility profiles of its members depends on exogenous variables, in particular wage rates and non-wage incomes, is an important one. Combined with Samuelson’s proposal, it can be made the basis for a general approach to modelling household decision taking, flexible enough to encompass non-cooperative behaviour and Pareto inefficiencies arising out of the inevitable incompleteness and unenforceability of domestic agreements. We also point out the importance of household production and some of the implications of its neglect in modelling households. Above all, the aim is to provide a deeper understanding of the current theoretical literature on household economics by means of a survey of its history.","PeriodicalId":358833,"journal":{"name":"University of Sydney Law School Legal Studies Research Paper Series","volume":"8 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116882839","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Law's Legitimacy and 'Democracy-Plus'","authors":"W. Sadurski","doi":"10.2139/ssrn.937833","DOIUrl":"https://doi.org/10.2139/ssrn.937833","url":null,"abstract":"Is it the case that the law, in order to be fully legitimate, must not only be adopted in a procedurally correct way but must also comply with certain substantive values? In the first part of the paper I prepare the ground for the discussion of legitimacy of democratic laws by considering the relationship between law’s legitimacy, its justification and the obligation to obey the law. If legitimacy of law is seen as based on the law being justified (as in Raz’s service conception), our duty to obey it does not follow automatically: it must be based on some additional arguments. Raz’s conception of legitimate authority does not presuppose, as many critics claim, any unduly deferential attitude towards authorities. Disconnection of the law’s legitimacy from the absolute duty to obey it leads to the central part of the paper which consists in a critical scrutiny of the claim that the democratically adopted law is legitimate only insofar as it expresses the right moral values. This claim is shown to be, under one interpretation (motivational), nearly meaningless or, under another interpretation (constitutional), too strong to survive the pressure from moral pluralism. While we cannot hope for a design of pure procedural democracy (by analogy to Rawlsian pure procedural justice), democratic procedures express the values which animate the adoption of a democratic system in the first place.","PeriodicalId":358833,"journal":{"name":"University of Sydney Law School Legal Studies Research Paper Series","volume":"148 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123414312","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Household Saving and Full Consumption Over the Life Cycle","authors":"P. Apps, R. Rees","doi":"10.2139/ssrn.267948","DOIUrl":"https://doi.org/10.2139/ssrn.267948","url":null,"abstract":"This paper extends the standard model of life cycle consumption, saving and labor supply in a number of directions. First, it argues that consumption should be defined as expenditure on household production as well as on market goods, that is, we are interested in life cycle profiles of full consumption. If this is done, several well-known puzzles concerning life cycle consumption behaviour are resolved. Secondly, we stress the importance of the heterogeneity of household behaviour in respect of female labour supply and saving, and provide evidence to show that these are very closely related across households. Finally, we formulate theoretical and empirical models incorporating these ideas and use them to show that policy changes, such as a reduction in the progressivity of income taxation, can have effects that contrast sharply with those suggested in the existing literature.","PeriodicalId":358833,"journal":{"name":"University of Sydney Law School Legal Studies Research Paper Series","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125676985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Is there a 'Public Benefit' in Improving Working Conditions for Independent Contractors? Collective Bargaining and the Trade Practices Act 1974 (Cth)","authors":"S. McCrystal","doi":"10.1177/0067205x0903700204","DOIUrl":"https://doi.org/10.1177/0067205x0903700204","url":null,"abstract":"In late 2006, the Commonwealth Parliament passed amendments to the Trade Practices Act 1974 (Cth) that were designed to make it easier for small businesses to engage in collective bargaining. The amendments were sold as providing an opportunity for groups of small businesses to counteract inequality of bargaining power in their dealings with larger businesses. Despite the hype, in reality the changes only enable collective bargaining to take place more easily in cases where public benefit can be demonstrated. This article examines the new provisions over the first two years of their operation, and focuses in particular on their utility for groups of contractor workers who want to engage in collective bargaining in order to improve their working conditions. Utilising the few case studies available from the first 2 years of the provisions’ operation, the discussion examines the difficulties contractor workers face in establishing the ‘public benefit’ of their proposed bargaining arrangements. In particular, the discussion demonstrates that the collective bargaining provisions fail to offer any substantive benefits to groups of contractor workers. Any group of workers with existing market power will be denied the opportunity to collectively bargain due to their pre-existing market position. Workers without existing market power may be allowed to engage in collective bargaining but any proposed bargaining tactics cannot be coercive in effect. This means that in practice, the provisions do not offer a meaningful opportunity for contractor workers to engage in collective bargaining to improve their working conditions.","PeriodicalId":358833,"journal":{"name":"University of Sydney Law School Legal Studies Research Paper Series","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115980208","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}